Contempt power

By V. R. Krishna Iyer

BORN OBSCURELY in England, contempt of court has spread to the
U.S. and Commonwealth countries. Mr. Ronald L. Goldfarb, in a
study, observes that the power of contempt itself ``is, perhaps,
nearest akin to despotic power of any power existing under our
form of government.'' Some call this totalitarian, others say its
absence would lead to anarchy. Yet others have opted for a middle
ground. Mr. Justice Black (U.S.) is fiercely opposed to this
balancing device, a Constitutional inroad into the First
Amendment of Free Speech and is apt to be absolutist. Indian law
is a simian version of British precedents. We, unlike the
British, have a written Constitution. Still due process or
procedure which is ``just, fair and reasonable'' (the Maneka
Gandhi case) is thrown to the winds in contempt cases because the
prosecutor and the judge are the same, and absence of bias in
such cases is often an illusion since judges are human.

American judicial liberalism has encouraged healthy criticism and
democratic protest when the highest court provoked popular
outrage by unpopular rulings. Strange but true, if Mr. Goldfarb
is correct, the U.S. ``Supreme Court has only once exercised the
contempt power.''

This power has an English origin of regal middle ages, and is
obsolete and obstructive in the modern democratic order. Our
judges and legislators are not delegates of royalties of feudal
England and ``alleged divinely ordained monarchies,'' a relic of
the Star Chamber. The King is the fountain of justice and has
delegated it to judges. So contempt of court is a challenge to
the King's wisdom. ``This is a most fatal obstruction of justice,
and calls for a more immediate redress than any other.'' (Sir
John Fox). If such be the genesis of contempt jurisprudence, it
is utterly allergic to the Indian Republic which became a
democratic reality of ``We, the People of India'', after they
demanded the British royalty to quit. The present law of contempt
is of a colonial vintage and so our courts, like American courts,
must restructure it to suit the ethos of the Constitution and
functionally fit the values of free expression and other
fundamental rights.

It is necessary to protect the judicial process and institution
from scandalisation or contumacious violation. But this must be
according to democratic principle, not authoritarian hubris, lest
the citizen's basic rights be destroyed by a judge's wrath. Mr.
Justice Black in the Braden case wrote about the balancing device
between free speech and contempt of court, that the dangers to
democracy are best fought in the free market-place of ideas,
associations and petitions, and that punishment, directly or
indirectly, of these freedoms is the way to national self-
destruction. He added: ``There are grim reminders all around this
world that the distance between individual liberty and firing
squads is not always as far as it seems.''

Hyper-sensitivity and peevishness have no place in the halls of
justice while the wages of vicious stultification and vulgar
debunking of judges may be punitive gravity.

`Contempt' will still survive if the concept is confined to just
limits, excluding reasonable criticism, though unpalatable and
defence by truth since refusal of the plea of veracity is
arbitrary in a democracy with satyameva jayate as the national
motto. To bang and bar and bolt the door of truth is totalitarian
and violative of sensitive justice. Contempt law is not ultra
vires but its scope, circumscription and salutary parameters must
not exceed Constitutional prescriptions out of megalomania or
infantile vanity.

I dwelt on the Almon case, along with Mr. Justice P.N. Bhagwati,
and repelled the kingly basis of the contempt law while going
closer to the people-oriented approach of the U.S. justice
system. ``This shift in legal philosophy will broaden the base of
the citizen's right to criticise and render the judicial power
more socially valid. We are not subjects of a King but citizens
of a republic and a blanket ban through the contempt power,
stifling criticism of a strategic institution, namely,
Administration of Justice, thus forbidding the right to argue for
reform of the judicial process and to comment on the performance
of the judicial personnel through outspoken or marginally
excessive criticism of the instrumentalities of law and justice,
may be a tall order. For, change through free speech is basic to
our democracy, and to prevent change through criticism is to
petrify the organs of democratic government. The judicial
instrument is no exception. To cite vintage rulings of English
courts and to bow to decisions of British Indian days as
absolutes is to ignore the law of all laws that the rule of law
must keep pace with the rule of life.''

In the Mulgaokar case (1978 S.C. 727), I wrote a separate
judgment stressing the following principles (quoted from the
headnote): ``The fourth functional canon which channels
discretionary exercise of the contempt power is that the fourth
Estate, which is an indispensable intermediary between the state
and the people and necessary instrumentality in strengthening the
forces of democracy, should be given free play within responsible
limits even when the focus of its critical attention is the
court, including the highest court.

``The fifth normative guideline for the judges to observe in this
jurisdiction is not to be hypersensitive even where distortions
and criticisms overstep the limits, but to deflate vulgar
denunciation, by dignified bearing, condescending indifference
and repudiation by judicial rectitude.''

The least dangerous branch, as the judiciary is often described,
may become the most dangerous if for every passing pejorative
hint or even strident criticism or truthful aspersion, the judge
hides behind contempt law. In that event, Lord Atkin, for his
cynical criticism of his colleagues in Anderson's case, President
Roosevelt, Prime Minister Nehru, Judge Learned Hand, Judge Jerome
Frank, Winston Churchill and surely Karl Marx, Lord Denning
himself, the authors of The Brethren, Mr. David Pannick, Queen's
Counsel (his book Judges), and myself, plus a few distinguished
journalists must now be in prison. No doubt Shakespeare is a
``contemner'', Harold Laski, Prof. Griffith and several other
greats mentioned by Mr. Pannick in his marvellous book are
culpable, if contempt law were not drastically read down. Even
Jesus and Gandhi may be liable.

India has a Constitution with positive values like the right to
life, free speech and other fundamentals for the millions in
misery and struggling for liberation. The court is one of the
protagonists in the transformation process. When it flags or
drags or retrogrades, its functional floundering falls for
criticism. Judges are not bulletproof against public criticism
based on facts.

India should welcome free speech, especially on public issues,
macro-projects and policies of deep import to the people.
Informed criticism, whether the President, Governors, judges or
ministers or generals or technocrats are disparaged or not,
uninhibited by any bogey or bully, is not only desirable but must
be encouraged. A dark democracy or ignorant citizenry, scared by
contempt is a disservice to the republic's progress. ``Know ye
the truth and the truth shall make you free.'' Maybe, to suppress
truth by contempt threat will embitter people, induce a clash
between totalitarian courts and terrorist right to transparency.
A developing democracy needs more speech, more communication,
even if a judicial process is pending. Enforced silence may not
enhance respect for the court. To jettison the freedom of
expression in the name of immunising fair judicial hearing is a
poor compliment to justices as if they are so soft and feeble as
to be swayed in their judgments by passing media winds.

The Indian judicature has every reason (with marginal though
slowly escalating, culpables creeping in) to be proud of the
quality (not yet quantity) of its performance and so, there is no
reason to fear bona fide criticism. Judocracy must not be an
imperium but must intrepidly eliminate corrupt, mafiasque
elements and vested interests pollutive of the public interest.
Then, only then, the least dangerous branch (the judiciary) will
rightly be regarded as the most extraordinarily powerful court of
law of our land. Democracy, without a great judiciary, is
proximate to slavery.

A final thought. Judges also make grave mistakes though the
occasions may be few. They are not beyond criticism although such
an impression of their being beyond it has been created. Far too
long is the truth of this lie been kept away from the public. It
is time to tell the people that the independent inestimable
judiciary is also part of our great democracy.